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;OURT^  MARTIAL  OUT' 

SECOND  REVISED  iiDrriOM 


Major  H,  ?.,  SPi'NELLI 


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GIFT   OF 
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SECOND  REVISED  EDITiQN. 


A  CATECHISM  ■•-:•... 

OF 

Court-Martial  Duty 


Arranged  and  Compiled  by 
MAJOR  H.  B.  SPINELLI, 

First  Infantry,  Texas  Volunteer  Guard, 
Counsellor-at-Law. 


ALL  RIGHTS  RESERVED. 


PUBUSHEJD   BY 

The  FRANK1.IN  Hudson  Pubwshing  Company, 

Kansas  City,  Mo. 

1917. 


INDEX. 

.^       :  Page. 

Airaignment .-_,  .  .\  .:.  .' 22 

.  Articles.  Of  .W-ai«.*.' 54 

/,  '-.'.flistorical  Note .  53 

Ch.Ai*ges  and  Specifications 9 

Dismissin  ^ 13 

Continuances 21 

Counsel 17 

Courts-Martial 6 

Constitution 9 

General 7 

Inferior 42 

Jurisdiction 7 

Organization 14 

Special 45 

Summary 42 

Courts  of  Inquiry 46 

Evidence,  Rules  of 33 

Finding 34 

Forms 60 

Application  for  Continuance 70 

Attachment 62 

Exceptions  to  Form 66 

Exceptions  to  Substance. 64 

Former  Acquittal 68 

Former  Conviction  . 67 

Interrogatories 63 

Subpoena 60 

Introduction 3 

Judge- Advocate 15 

Military  Tribunals 5 

Miscellaneous 48 


INDEX. 

Page. 

Pleas 22 

Practice 19 

Prisoners 41 

Punishment 36 

Record 38 

Sentences 37 

Witnesses 24 

Competency  of 27 

Examination  of 27 

Impeachment  of 31 


INTRODUCTION. 

The  Spanish- American  War  developed  the  weaknesses 
of  our  volunteer  soldiers,  not  the  least  of  which  was  a  re- 
markable ignorance  of  military  law  and  procedure  among 
the  officers.  This  was  not  the  fault  of  the  officers  them- 
selves, but  was  due  to  the  fact  that  works  on  military  law 
were  costly  and  cumbersome,  and  that  there  existed  no 
compact  hand-book  containing  the  principal  features  of 
court-martial  duty.  There  was  another  reason  for  this 
deficiency  in  the  fact  that  the  ordinary  man  usually  en- 
counters many  difficulties  in  the  matter  of  memorizing 
works  on  military  procedure,  as  much  from  lack  of  time 
as  from  the  dryness  of  the  subject,  as  well  as  from  the 
large  mass  of  secondary  matter  which  they  contain.  To 
weed  out'the  unimportant  and  to  render  the  material  the 
more  readily  assimilable  has  been  my  pleasant  task  in  the 
preparation  of  this  little  catechism,  which  I  hope  will 
meet  with  the  approval  of  my  brother  officers. 

Everything  herein  contained  bears  the  stamp  of  au- 
thority, for  I  have  consulted  and  freely  quoted  from  the 
^^ Manual  for  Courts-Martial,'^  De  Hart's  '^Military  Law,'' 
Winthrop's  Abridgement,  Greenleaf  on  Evidence,  and  the 
Digest  of  Opinions  of  the  Judge-Advocate  General,  in  the 
preparation  of  this  work. 

With  this  introduction,  I  submit  the  book  upon  its 
merits. 

H.  B.  Spinelli. 

Corpus  Christi,  Texas,  December  10,  1899. 


A  Catechism  of  Courl-Mavtial  Duty. 


PART  FIRST 


MILITARY  TRIBUNALS. 

Q.  How  many  kinds  of  Military  Jurisdiction  are 
there? 

A.  Four :  Military  Government  (the  Law  of  Hos- 
tile Occupation) ;  Martial  Law  at  Home;  Martial  Law 
Applied  to  the  Army;  Military  Law. 

Q.     What  is  Military  Law,  and  whence  derived? 

A.  Mihtary  Law  is  the  legal  system  that  regulates 
the  government  of  the  Military  Establishment.  It  is 
a  branch  of  Municipal  Law,  and  is  derived  from  the 
Constitution,  Statutory  Enactments  of  Congress,  the 
Articles  of  War,  the  General  or  Special  Orders  of  the 
Commanders  of  the  Army^  and  the  Decisions  of  the 
War  Department. 

Q.     What  is  the  Law  of  Hostile  Occupation? 

A.  Military  Government  of  a  conquered  territory. 
The  power  exercised  by  a  beUigerent,  by  virtue  of  his 
occupation  of  a  conquered  territory,  over  such  terri- 
tory and  its  inhabitants.  It  is  a  part  of  the  Law  of 
Nations. 


6     'iA^£AZECms:^A  OF  COURT-MARTIAL  DUTY. 

f4\  I  ^'^/'l  WliaI'dg  M^tftial  Law  at  Home,  and  upon  what 
founded? 

A.  Military  power  exercised  in  time  of  war,  in- 
surrection, or  rebellion,  in  parts  of  the  country  retain- 
ing their  allegiance,  and  over  persons  and  things  not 
usually  subject  to  it.  It  is  derived  from  statutory 
provisions  and  founded  on  paramount  necessity. 

5  Q.  What  is  Martial  Law  applied  to  the  Army? 
A.  Mihtary  power  extended,  iii  time  of  war,  in- 
surrection, or  rebellion,  over  persons  in  the  military 
service,  as  to  obligations  arising  out  of  such  emerg- 
ency, and  not  falling  within  the  domain  of  military 
law,  not  otherwise  regulated  by  law. 

6  Q.     How  many  kinds  of  Military  Tribunals  are 
there? 

\  A.     Two:    Courts-Martial  and  Courts  of  Inquiry. 

COURTS-MARTIAL. 

7  Q.     What  is  a  Court-Martial? 

A.  A  mihtary  judicial  body,  composed  of  com- 
missioned officers  only,  which  is  organized  in  obedi- 
ence to  orders  from  proper  authority,  for  the  trial  of 
offenses  against  military  law. 

8  Q.     How  many  kinds  of  Courts-Martial  are  there? 
A.     Three:     General    Courts -Martial,  Special 

Courts-Martial,  and  Summary  Courts. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.  7 

GENERAL   COURTS-MARTIAL. 

9         Q.     What  is  a  General  Court-Martial? 

A.  A  Court-Martial  composed  of  any  number  of 
commissioned  officers,  not  less  than  five  nor  more  than 
thirteen,  and  a  Judge-Advocate,  constituted  for  the 
purpose  of  trying  offenses  of  a  serious  nature.  Not 
less  than  thirteen  will  compose  this  Court  when  that 
number  can  be  convened  without  manifest  injury  to 
the  service. 

JURISDICTION. 

10         Q.     What  is  the  jurisdiction  of  a  General  Court- 
Martial? 

A.  A  General  Court-Martial  has  exclusive  orig- 
inal jurisdiction  over  officers,  cadets,  and  candidates 
for  promotion,  and  concurrent  jurisdiction  with  the 
inferior  Courts  over  all  enlisted  men  other  than  candi- 
dates for  promotion.  It  has  original  jurisdiction  over 
the  offense  of  fraudulent  enlistment,  over  all  offenses 
punished  capitally,  over  felonies  as  defined  in  the  92d 
and  93d  Articles  of  War,  When  committed  in  time  of 
war,  and  over  those  offenses  for  which  the  limit  of 
punishment  prescribed  by  the  President,  or  established 
by  custom  of  the  service,  previous  convictions  being 
considered,  shall  exceed  the  forfeiture  of  one  month's 
pay,  or  confinement  with  or  without  hard  labor  for 
one  month,  or  both.     It  has  jursidiction,  concurrent 


8         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

with  that  of  the  inferior  Courts,  over  all  other  offenses. 

11  Q.  In  time  of  war,  is  the  jurisdiction  of  Courts- 
Martial  limited  to  persons  in  the  military  service? 

A.  It  is  not.  It  extends  to  all  retainers  to  the 
camp,  to  all  persons  serving  with  the  armies  of  the 
United  States  in  the  field,  though  not  enlisted  soldiers, 
and  to  all  persons  who  aid  or  relieve  or  trade  with  the 
enemy,  or  give  him  information,  and  over  all  offenses 
coming  under  the  95th  and  98th  Articles  of  War. 

12  Q.     When  does  mihtary  jurisdiction  usually  end? 
A.     Upon  the  discharge  of  a  soldier,  or  the  dis^ 

missal  or  resignation  of  an  officer. 

13  Q.     Are  there  any  exceptions  to  this  rule? 

A.  There  are.  Jurisdiction  still  attaches  to  dis- 
charged officers  and  soldiers  guilty  of  frauds  against 
the  United  States  under  the  94th  Article  of  War,  and 
discharged  officers  granted  trial  after  summary  dis- 
missal, under  Section  1230,  Revised  Statutes. 

14  Q.  A  dismissed  officer  returned  to  the  service  by 
a  new  commission,  and  charges  were  brought  against 
him  for  offenses  committed  before  his  dismissal.  What 
was  the  action  in  the  case,  and  why? 

A.  The  Judge-Advocate  General  decided  that  the 
Court  had  no  jurisdiction,  because,  the  military  juris- 
diction having  ceased  when  the  officer  left  the  service, 
it  could  not  again^be^revived. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.  9 

CONSTITUTION. 

15  Q.     By  whom  is  a  General  Court-Martial  insti- 
tuted? 

A.  (1)  By  the  President,  in  his  capacity  as  Com- 
mander-in-Chief of  the  Army;  or  when  a  commanding 
officer  whose  province  it  would  be  to  institute  a  Gen- 
eral Court-Martial  is  himself  the  accuser;  or  upon  the 
application  of  a  dismissed  officer;  (2)  By  any  general 
officer  commanding  an  army  or  a  territorial  depart- 
ment; (3)  For  the  trial  of  cadets,  by  the  Super- 
intendent of  the  United  States  Military  Academy ; 
(4)  By  the  Commandant  of  United  States  Disciplinary 
Barracks. 

CHARGES   AND   SPECIFICATIONS. 

16  Q.     How  is  a  mihtar}^  offender  brought  before  a 
Court-Martial? 

A.  By  means  of  a  charge,  corresponding  to  the 
civil  ^'indictment,"  brought  by  some  competent 
person. 

17  Q.     What  is  a  charge? 

A.  It  is  a  complaint  against  a  mihtary  person, 
consisting  of  two  parts:  the  charge,  wherein  the  na- 
ture of  the  offense  is  described;  and  the  specification, 
wherein  the  particular  facts  which  constitute  the  same 
are  stated. 


10         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

18  Q.     What  are  the  requisites  of  the  charge? 

A.  That  it  be  brief,  and  laid  under  the  proper 
Article  of  War  or  other  statute. 

19  Q. '    What  are  the  requisites  of  the  specification? 
A.     That  it  shall,  in  a  clear  and  concise  manner, 

set  forth  sufficient  facts  to  constitute  the  particular 
offense,  and  that  dates  shall  be  stated  as  nearly  as 
possible,  in  order  that  it  may  fully  appear  that  prose- 
cution is  not  barred  by  limitation. 

20  Q.     Give  an  example  of  a  specification  subject  to 
an  exception  as  being  double. 

A.  A  specification  alleging  that  the  accused  was 
absent  without  leave  at  various  times  between  two 
dates,  twenty  days  apart,  because  each  absence  was 
a  substantive  and  distinct  offense. 

21  Q.     Is  the  technical  nicety  requisite  in  a  civil  in- 
dictment also  required  in  a  specification? 

A.  It  is  not.  A  plain  statement  of  the  facts  is 
sufficient,  provided  the  legal  offense  itself  be  distinct- 
ly and  accurately  described,  and  the  time  and  place 
be  stated  as  carefully  as  possible.  Where  a  single 
charge  requires  several  specifications,  the  time  and 
place,  as  nearly  as  possible,  should  be  stated  in  each 
specification. 

22  Q.     What  should  always  be  done  before  preparing 
a  charge? 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         11 

A.  The  Articles  of  War  and  statutes  relating  to 
the  Army  should  be  carefully  examined  to  ascertain 
if  the  alleged  offense  is  specially  provided  for  in  any 
Article.  If  so,  the  charge  should  be  laid  under  that 
Article.  If  not,  the  charge  should  be  laid  under  the 
general  Articles — the  95th  or  96th,  depending  on  the 
nature  of  the  offense  and  the  rank  of  the  offender. 

Q.  Should  the  nature  of  the  offense  be  such  as  to 
leave  a  doubt  as  to  which  of  several  Articles  it  would 
be  proper  to  base  the  charge  upon,  what  course  should 
be  pursued? 

A.  Several  separate  charges,  one  under  each  of 
the  several  Articles,  should  be  preferred,  so  that  the 
Court-Martial  may  fully  judge  of  the  nature  of  the 
offense. 

Q.  Where*  an  offense  is  described  under  an  Article 
which  prescribes  a  specific  punishment,  to  the  exclu- 
sion of  any  other,  is  it  proper  to  lay  the  charge  under 
another  which  also  describes  the  offense,  but  which 
prescribes  a  punishment  at  the  discretion  of  the  Court- 
Martial? 

A.  It  is  not;  and,  conversely,  it  is  erroneous  to 
charge  under  a  specific  Article  prescribing  a  particu- 
lar punishment  an  offense  properly  chargeable  under 
the  96th  Article. 

Q.  Is  it  proper  to  join  severai  accused  persons  on 
one  charge,  or  to  try  them  on  joint  charges? 


12         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  Only  in  the  case  of  offenses  in  which  a  con- 
cert of  action  by  several  individuals  is  a  requisite  to 
their  commission,  and  where  the  offenses  were  actu- 
ally committed  in  concert  in  pursuance  of  a  common 
design. 

26  Q.  When  an  Article  includes  two  or  more  of- 
fenses, how  should  a  charge  under  such  an  Article 
be  laid? 

A.  The  particular  offense  committed  should  be 
stated,  adding  the  words,  ^'in  violation  of  the  [such] 
Article  of  War.'^ 

27  Q.  Is  a  charge  which  reads,  ''selling  or  through 
neglect  losing,  etc.,  in  violation,  etc.,"  properly  laid? 

A.  It  is  not.  Charges  and  specifications  should 
never  be  laid  in  the  alternative.     That  is  bad  pleading. 

28  Q.  What  should  a  commanding  officer  do  when  a 
charge  is  brought  before  him? 

A.  He  should  personally  investigate  the  charges,' 
examining  them  as  to  the  rank  of  the  accused  and  the 
nature  of  the  offense  in  order  to  determine  what  Court 
would  have  jurisdiction,  and  then  endorse  upon  the 
back  of  the  charges  whether  or  not  he  beheves  they 
can  be  sustained. 

29  Q.  Should  the  offense  or  the  offender  be  within 
the  exclusive  jurisdiction  of  a  General  Court-Martial, 
what  will  the  commanding  offcer  do? 


A   CATECHISM  OF  COURT-MARTIAL  DUTY,         13 

A.  He  will  forward  them  to  the  authority  com- 
petent to  order  such  a  Court. 

30  Q.  What  must  always  accompany  charges  against 
enlisted  men? 

A.  Proper  evidence  of  previous  convictions,  in  aH 
cases  where  such  evidence  is  admissible,  and,  in  the 
case  of  a  charge  of  desertion,  a  statement  of  service 
and  a  surgeon^s  report  of-  fitness  for  service. 

31  Q.  Should  a  copy  of  charges  preferred  against  an 
officer  be  served  upon  him? 

A.  It  should  be  served  within  eight  days  after 
the  officer's  arrest. 

DISMISSING  CHARGES. 

32  Q.  After  charges  have  been  properly  referred  to 
a  Court-Martial,  has  such  a  Court,  or  its  Judge- 
Advocate,  any  right  to  withdraw,  drop,  dismiss,  or 
.nolle  pros  as  to  the  whole  or  any  part  of  any  of  such 
charges  or  specifications? 

A.  It  has  not.  Nevertheless,  when  by  a  special 
plea  or  objection  of  the  accused  an  issue  is  made  as 
to  the  sufficiency  of  any  charge  or  specification,  the 
Court  is  empowered  to  sustain  the  plea  or  objection, 
and  to  quash  or  strike  out  the  objectionable  matter. 

33  Q.     Is  it  permissible  to  prefer  additional   charges 


11         A   CATECHISM  OF  COURT-MARTIAL  DUTY, 

in  a  case  to  which  the  accused  has  already  pleaded, 
after  arraignment? 

A.  It  is  not.  Such  charges  should  be  made  the 
subject  of  a  separate  trial. 

*      ORGANIZATION   OF   COURTS-MARTIAL. 

34  Q.     How  are  Courts-Martial  organized? 

A.  The  convening  authority  designates  the  date, 
time,  and  place  for  holding  a  Court-Martial,  details 
the  members  and  the  Judge-Advocate  by  name.  At 
the  proper  hour  of  the  day  of  assembly,  the  officers 
detailed  for  that  duty  meet  at  the  designated  place, 
the  Judge-Advocate  is  sworn  by  the  president  of  the 
Court,  and  in  turn  administers  the  oath  to  the  mem- 
bers thereof.     The  organization  is  then  complete. 

35  Q.     What  uniform  is  worn  on  court-martial  duty? 
A.     All  members  wear  the  uniform  prescribed  by 

the  president  of  the  Court ;  all  wear  the  sword,  except 
the  Judge-Advocate  and  Counsel  for  the  accused;  all 
military  witnesses  wear  the  service  uniform  with  side- 
arms;  the  prisoner  wears  the  service  uniform  without 
side-arms. 

36  Q.    How  does  a  Court-Martial  assemble? 

A.  At  its  first  session,  pursuant  to  the  order  con- 
vening it;  thereafter,  pursuant  to  adjournment. 

37  Q.     What  rules  of  etiquette  must  be  observed  in  a 
Court-Martial? 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.         15 

A.  The  Judge-Advocate  and  the  accused  stand 
during  the  reading  of  the  order  convening  the  Court, 
and  during  the  arraignment  and  plea  of  the  accused, 
The  Court,  Judge-Advocate,  and  all  other  persons 
present  stand  while  the  o^ath  is  being  administered  to 
the  Court  and  Judge-Advocate.  Wheji  any  person  is 
being  sworn  by  the  Judge- Advocate,  they  should  both 
stand.  When  any  person  desires  to  address  the  Court, 
he  should  first  rise. 

Q.     Is  the  president  of  a  Court-Martial  announced? 

A.  He  is  not.  The  officer  present  highest  in  rank 
will  always  act  as  president. 

Q.     What  are  the  duties  of  the  president? 

A.  He  is  the  mouthpiece  of  the  Court,  preserves 
order,  and  conducts  the  business  of  the  Court. 

Q.  When  more  than  one  trial  is  held  for  separate 
and  distinct  offenses,  what  must  be  done  in  each  case? 

A.  The  Court  and  Judge-Advocate  will  be  sworn 
in  at  the  commencement  of  each  trial. 

JUDGE-ADVOCATE. 

Q.     What  are  the  duties  of  the  Judge- Advocate? 

A.  To  act  as  prosecuting  attorney  of  the  Court; 
to  note  and  report  any  irregularities  in  the  order  con- 
vening the  Court;  to  see  that  all  charges  are  technic- 
ally and  correctly  drawn,  before  the  Court  assembles; 


16         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

to  acquaint  the  accused  with  the  nature  of  the  ac- 
cusation against  him,  inform  him  of  his  right  to  have 
counsel,  to  have  compulsory  process  for  his  witnesses, 
and  to  testify  in  his  own  behalf;  to  obtain  a  suitable 
room  for  the  Court,  and  see  that  it  be  properly  ar- 
ranged; to  procure  the  necessary  stationery;  to  sum- 
mon witnesses;  to  secure  the  services  of  a  stenogra- 
pher, when  authorized;  and  to  famiharize  himself,  as 
far  as  possible,  with  the  cases  to  be  tried,  so  as  to  be 
able  to  conduct  the  same  in  an  orderly  and  systematic 
manner. 

42  Q.     In  what  respect  do  his  duties  differ  from  those 
.   of  a  civil  prosecuting  attorney? 

A.  After  the  plea  of  the  accused  has  been  made, 
he  should  so  far  consider  himself  counsel  for  the  pris- 
oner as  to  object  to  any  leading  questions  to  wit- 
nesses, and  to  any  question  to  the  prisoner  the  answer 
to  which  might  tend  to  make  the  latter  criminate 
himself. 

43  Q.     What  other  duties  are  performed  by  the  Judge- 
Advocate? 

A.  He  executes  all  orders  of  the  Court;  reads  the 
convening  order  to  the  accused  and  arraigns  him; 
swears  the  reporter,  interpreters,  and  all  witnesses; 
examines  witnesses;  keeps  or  superintends  the  keep- 
ing of  the  record;    signs  each  day^s  record  of  the 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.         17 

proceedings;  he,  in  conjunction  with  the  president, 
authenticates  the  record  by  his  signature,  and  after 
the  trial,  he  transmits  the  same  to  the  convening 
authority;  he  is  the  legal  adviser  of  the  Court,  and 
will  endeavor  to  prevent  all  illegal  or  irregular  actions 
on  the  part  of  the  latter,  and  will  render  his  opinion 
as  to  points  of  law,  whenever  the  same  is  asked  by 
the  Court. 

COUNSEL. 

44  Q      Is  a  military  prisoner  entitled  to  counsel? 

A.  He  is,  as  a  matter  of  right;  and  it  is  made  the 
duty  of  the  commanding  officer  of  the  post  or  camp 
where  the  Court-Martial  sits  to  appoint  some  suitable 
officer  to  defend  any  prisoner  who  requests  counsel. 

45  Q.     What  are  the  duties  of  a  prisoner's  counsel? 
A.     To  guard  the  interests  of  the  accused  by  all 

honorable  and  lawful  means,  preventing  the  introduc- 
tion of  any  evidence  which  might  tend  to  criminate 
the  accused,  so  far  as  it  may  be  in  his  power  to  do  so; 
to  raise  objections  to  the  jurisdiction  of  the  Court,  or 
to  the  sufficiency  of  the  specifications  whenever  such 
objections  would  be  proper;  and  to  discredit  the  testi- 
mony of  such  witnesses  as  he  may  believe  to  be  biased, 
or  prejudiced,  or  to  be  testifying  from  some  unlawful 
motive. 


18         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

46         Q.     Will  the  prisoner's  counsel  be  required  to  re- 
duce his  questions  and  arguments  to  writing? 

A.     Whenever  the  record  of  the  Court  is  kept  in 
longhand,  it  will  be  his  duty  to  do  so. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         19 


PART  SECOND 


PRACTICE. 

47  Q.  Are  the  rules  of  practice  and  procedure  the 
same  in  all  Courts-Martial? 

A.     In  all  Courts-Martial  composed  of  more  than 
one  officer  the  rules  are  the  same. 

48  Q.  Should  the  accused  have  reason  to  believe 
that  he  will  not  receive  fair  treatment  at  the  hands  of 
some  member  of  a  Court-Martial,  or  that  some  of  the 
members  are  his  accusers,  or  that  they  are  witnesses 
in  his  case,  what  should  he  do? 

A.     He  should   challenge  such  members  of  the 
Court. 

49  Q.  Should  a  challenged  member  leave  the  court- 
room pending  the  deliberation  on  the  objection? 

A.     It  is  not  necessary,  but  usual  and  proper,  for 
him  to  do  so. 

50  Q.  In  Courts  composed  of  one  officer  only,  has 
the  accused  the  right  of  challenge? 

A.     He  has  not.     When  the  officer  composing  the 
Court  is  the  accuser,  he  will  not  try  the  case. 


20         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

51  Q.     What  are  the  essentials  of  a  challenge? 

A.  It  must  be  as  to  one  member  at  a  time,  and 
must  be  for  cause  stated  specially  to  the  Court. 

52  Q.     What  causes  will  ordinarily  sustain  a  chal- 
lenge? 

A.  That  he  sat  as  a  member  of  a  Court  of  In- 
quiry investigating  the  charges;  that  he  is  the  accuser; 
that  he  will  be  a  witness  for  the  prosecution;  that 
(upon  a  rehearing  of  the  case)  he  sat  as  a  member  on 
the  former  trial;  that,  in  case  of  trial  of  an  officer, 
the  member  will  be  promoted  by  the  dismissal  of  the 
accused;  that  he  is  related  by  blood  or  marriage  to 
the  accused;  that  he  has  a  declared  enmity  against 
the  accused. 

53  Q.     When  will  evidence  be  heard  in  support  of  a 
challenge? 

A.  When  the  cause  is  not  evident,  and  when  the 
challenged  member  denies  the  existence  of  the  alleged 
cause,  or  when  his  statement  to  the  Court,  in  answer 
to  the  challenge,  is  unsatisfactory. 

54  Q.     Is    it   permissible    to    challenge    the    Judge- 
Advocate? 

A.     It  is  not. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY,  21 

CONTINUANCES. 

55  Q.     Will  the  postponement  of  a  Court-Martial  be 
permitted? 

A.  Only  by  special  permission  of  the  convening 
authority,  which  should  be  secured  before  the  accused 
is  arraigned. 

56  Q.     Will  continuances  be  permitted? 

A.  Continuances  will  be  granted  to  either  party, 
for  reasonable  cause,  for  such  time  and  as  often  as 
may  appear  to  be  just.  The  trial  of  a  prisoner  held 
in  close  confinement,  however,  will  not  be  delayed 
longer  than  sixty  days. 

57  Q.     What  are  the  essentials  of  an  application  for 
a  continuance  on  account  of  the  absence  of  a  witness? 

A.  It  must  be  made  under  oath,  and  must  show 
that  the  witness  is  material,  why  he  is  material,  that 
the  accused  has  used  due  diligence  to  procure  his  at- 
tendance, that  he  is  not  absent  through  procurement 
of  the  accused,  and  that  the  latter  has  reasonable 
ground  to  believe  and  does  believe  that  he  will  be  able 
to  procure  the  attendance  of  the  witness  within  the 
reasonable  time  stated. 

58  Q.     Give  three  reasonable  grounds  for  a  continu- 
ance. 

A.     (1)  That  the  charges  and  specifications  upon 


12         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

which  the  accused  is  arraigned  differ  materially  from 
those  in  the  copy  served  upon  him. 

(2)  That  since  the  arraignment,  a  material  and 
substantial  amendment  of  the  specifications  has  been 
authorized  by  the  Court. 

(3)  That  the  accused  needs  time  to  procure  coun- 
sel, who  can  be  obtained  within  reasonable  time. 

ARRAIGNMENT. 

59  Q.     What  is  the  arraignment,  and  how  is  the  ac- 
cused arraigned? 

A.  The  arraignment  is  the  act  of  calling  and  set- 
ting a  prisoner  before  a  Court  to  answer  to  a  charge 
against  him.  After  the  Court  has  been  organized 
and  both  parties  have  announced  '^  ready, '^  the  Judge- 
Advocate  will  read  the  charges  and  specifications, 
separately  and  in  order,  to  the  accused,  and  will  ask 
him  how  he  pleads  to  each,  whether  ^'guilty''  or 
"not  guilty,''  the  pleas  to  the  specifications  being  first 
received,  and  then  the  plea  to  the  charge. 

PLEAS. 

60  Q.     How  many  kinds  of  pleas  are  there? 

A.  Four:  (1)  plea  to  the  jurisdiction;  (2)  plea 
in  abatement;  (3)  plea  in  bar  of  trial;  (4)  plea  to  the 


A  CATECHISM  OF  COURT-MARTIAL  DUTY,         23 

general  issue.     The  first  three  are  also  known  as  special 
pleas.  These  pleas  should  be  made  in  the  order  named. 

61  Q.     Give  an  example  of  a  special  plea. 

A.  (1)  ^^  Guilty  of  the  specification,  except  the 
words  '[here  insert  the  excepted  words]/  and  of  the 
excepted  words,  not  guilty.'^  (2)  "  Guilty  of  the  spec- 
ification, except  the  words  '[here  insert  the  excepted 
words],'  and  of  the  excepted  words,  not  guilty,  but 
guilty  of  the  following  words  instead:  '[here  insert 
the  words  substituted]  ^''  And  to  the  charge,  '^Not 
guilty,  but  guilty  of  [here  insert  the  description  of 
the  offense].'^ 

62  Q.     What  other  special  pleas  are  there? 

A.  Pleas  in  bar,  such  as  pleas  of  autrefois  acquit 
or  autrefois  convict  in  cases  involving  both  a  civil  and 
a  military  offense,  and  pleas  to  the  jurisdiction.  Evi- 
dence will  be  heard  to  substantiate  these  pleas,  and 
will  be  recorded.  The  burden  of  proof  is  on  the 
accused. 

63  Q.     What  is  the  effect  of  pleading  the   general 
issue — i.  6.,^^ guilty"  or  ''not  guilty"? 

A.  It  operates  as  a  waiver  of  all  proper  objections 
to  the  form  or  substance  of  the  charges. 

64  Q.     Will  a  Court-Martial  take  judicial  notice  of 
the  Statute  of  Limitation? 

A.     No.     It  must  be  specially  pleaded  and  proved. 


24  A  CATECHISM  OF  COURT-MARTIAL  DUTY. 

65  Q.  Can  an  officer  or  soldier  who  has  been  con- 
victed or  acquitted  of  a  special  offense  be  brought  t^ 
trial  for  a  minor  offense  contained  in  the  one  already 
tried? 

A.  No.  The  greater  includes  the  lesser.  Thus  a 
soldier  acquitted  of  desertion  may  not  be  brought  to 
trial  for  absence  without  leave. 

WITNESSES. 

66  Q.  How  can  the  attendance  of  a  military  witness 
be  procured? 

A.  By  means  of  a  verbal  or  written  notice  from 
the  Judge-Advocate,  when  the  witness  resides  at  or 
near  the  post  where  the  Court-Martial  is  to  be  held. 
If,  however,  he  resides  so  far  away  that  travel  is 
necessary,  the  Judge- Advocate  will  send  him  a  sum- 
mons through  the  authority  competent  to  order  the 
travel. 

67  Q.  How  can  the  attendance  of  a  civilian  witness 
be  procured? 

A.  If  he  resides  near  the  post  where  the  Court- 
Martial  is  to  be  held,  duplicate  subpoenas  will  be  pre- 
pared, one  of  which  will  be  served  upon  the  witness 
by  personal  delivery  by  the  Judge-Advocate,  or  by 
any  person  instructed  by  him,  the  proof  of  such  serv- 
ice being  the  return  of  the  duplicate,  properly  en- 
dorsed, to  the  Judge- Advocate.     If  the  witness  is  ajb 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         25 

a  distance,  but  within  the  State,  the  subpoenas  shall 
be  sent  to  the  department  commander  in  whose  de- 
partment the  witness  resides,  with  a  request  to  have 
the  same  served. 

68  Q.  How  can  the  attendance  of  a  civilian  witness 
be  enforced,  should  he  fail  or  refuse  to  appear? 

A.  The  Judge- Advocate  will  attach  him  by  means 
of  a  warrant  of  attachment  of  the  same  character  as 
that  used  in  the  State  Courts  of  the  State  wherein  the 
witness  is  living,  and  will  execute  the  process  through 
any  officer  designated  by  the  department  commander 
for  the  purpose.  Said  officer  will  only  use  such  force 
as  may  be  necessary  to  bring  the  witness  before  the 
Court,  but  he  may  request  the  post  commander  near- 
est the  residence  of  witness  to  furnish  a  military  de- 
tail of  sufficient  strength  to  execute  the  process,  and 
it  is  made  the  duty  of  the  commander  to  furnish  the 
same. 

69  Q.     What  papers  should  the  officer  possess? 

A.  The  duplicate  subpoena  endorsed  with  the 
affidavit  of  service,  a  certified  copy  of  the  order 
appointing  the  Court-Martial,  and  the  warrant  of 
attachment. 

70  Q.  Can  the  attendance  of  a  civilian  witness  re- 
siding beyond  the  limits  of  the  State  wherein  the 
Court-Martial  is  sitting  be  enforced? 


26         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  It  can  not.  Testimony  in  such  a  case  must  be 
in  the  nature  of  depositions. 

71  Q.     Are  depositions  permissible  in  all  cases? 

A.  They  are  not  permissible  in  cases  where  it  is 
necessary  that  the  accused  should  be  confronted  with 
the  witnesses  against  him,  such  as  capital  cases. 

72  Q.     What  method  will  be  followed  to  obtain  dep- 
ositions? 

A.  A  list  of  interrogatories  to  be  propounded  to 
the  absent  witness  is  submitted  to  the  Court  by 
the  party  desiring  the  testimony,  a  list  of  cross- 
interrogatories  is  then  submitted  by  the  opposite  par- 
ty, re-direct  and  re-cross  interrogatories  are  added  if 
necessary,  the  Court  adds  a  list  of  such  questions  as 
it  deems  proper  to  properly  understand  the  testimony, 
and  then  the  Judge-Advocate  issues  subpoenas  requir- 
ing the  witness  to  appear  before  the  officer  by  whom 
the  depositions  are  to  be  taken,  at  the  time  and  place 
fixed  by  the  latter,  and  all  the  papers  are  forwarded 
to  the  convening  authority,  with  a  request  that  the 
depositions  be  procured. 

73  Q.     What  military  officers  are  authorized  by  law 
to  take  depositions  and  to  administer  oaths? 

A.  Judge-Advocates  of  Departments  and  of 
Courts-Martial,  and  trial  officers  of  Summary  Courts. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         27 

74  Q.     If  none  of  these  be  available,  by  whom  must 
the  depositions  be  taken? 

A.  By  some  civil  officer  empowered  by  law  to 
administer  oaths  for  general  purposes. 

75  Q.     In  forwarding  interrogatories,  what  should  the 
Judge-Advocate  be  careful  to  do? 

A.  He  should  transmit  with  them  a  subpoena  (in 
duplicate)  requiring  the  witness  to  appear  at  a  stated 
place  and  date  before  a  certain  person  who  is  to  take 
the  deposition.  Particulars  not  ascertained  may  be 
left  blank,  to  be  filled  by  the  officer  or  person  by  whom 
the  subpoena  is  served. 

COMPETENCY  OF  WITNESSES. 

76  Q.     Who  are  competent  witnesses?  ^ 
A.     As  a  general  rule,  all  persons  are  competent 

witnesses,  the  exceptions  being  idiots,  lunatics,  in- 
fants, and  persons  under  the  influence  of  intoxicants, 
as  well  as  persons  insensible  to  the  obligations  of  an 
oath  and  those  incapable  of  comprehending  the  same. 
The  wife  of  the  accused  is  incompetent  to  testify  ex- 
cept in  cases  in  which  she  is  the  injured  party.  The 
accused  himself,  when  he  requests  to  be  heard,  is  a 
competent  witness. 

THE  EXAMINATION   OF  WITNESSES. 

77  Q.     What  rules  of  evidence  are  followed  in  Courts- 
Martial? 


28  A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  The  common-law  rules  of  evidence;  but  mili- 
tary men,  not  being  ordinarily  well  versed  in  the 
niceties  of  the  law,  are  not  bound  to  follow  these 
rules  strictly. 

78  Q.     Are  witnesses   customarily  examined  in  the 
presence  of  each  other? 

A.  It  is  usual  to  ask  witnesses  not  testifying  to 
retire  from  the  court-room. 

79  Q.     After  a  witness  has  stated  his  name,  age,  etc., 
what  is  the  first  question  usually  put  to  him? 

A.  Such  an  one  as  will  at  once  determine  his  iden- 
tification of  the  accused;  as,  ''Do  you  know  the 
accused?     If  so,  state  who  he  is." 

80  Q.     What  should  be  the  character  of  the  next 
question? 

A.  Such  that  it  will  elicit  an  answer  showing 
that  the  witness  was  or  was  not  in  a  position  to  be 
acquainted  with  the  facts  set  forth  in  the  specifications. 

81  Q.     Are  leading  questions  permissible,  on   direct 
examination? 

A.  Except  for  the  purpose  of  leading  the  witness 
as  soon  as  possible  to  the  material  point  in  the  case, 
they  are  not.  Acknowledged  facts,  however,  may 
be  recapitulated  to  a  witness  for  the  purpose  of  let- 
ting him  understand  the  matter  upon  which  he  is  to 
testify. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         29 

82  Q.     What  is  a  leading  question? 

A.  Such  an  one  as  plainly  suggests  the  answer 
desired,  or  which,  embodying  a  material  fact,  admits 
of  a  simple  '^yes'^  or^^no/' 

83  Q.     When  are  leading  questions  permissible? 

A.  In  cases  where  the  witness  appears  to  be  hos- 
tile to  the  party  producing  him,  or  in  the  interest  of 
the  other  party,  or  unwilling  to  testify,  or  where  an 
omission  in  his  testimony  is  evidently  caused  by  want 
of  recollection,  or  where  the  mind  of  a  witness  can  not 
be  directed  to  the  subject  of  inquiry  without  a  par- 
ticular specification  of  it,  or  when  called  to  contradict 
another  witness. 

84  Q.     To   what   matters   should   the   questions   be 
confined?  .  ' 

A.  To  matters  relevant  to  the  matter  in  issue, 
unless  the  party  promises  to  connect  matters,  appar- 
ently irrelevant,  later  on  in  the  trial. 

85  Q.     Will  a  witness  be  permitted  to  give  hearsay 
testimony? 

A.  Except  in  the  case  of  dying  declarations,  and 
where  reputation  is  sought  to  be  established,  or  where 
hearsay  is  necessary  to  refresh  the  memory  as  to  in- 
cidents in  issue,  or  when  the  hearsay  is  a  part  of  the 
res  gestce  or  circumstances  which  are    automatic  and 


30         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

undesigned  incidents  of  a  particular  act,  such  as  ex- 
clamations by  by-standers,  declarations  coincident  with 
offenses,  etc.,  hearsay  testimony  will  not  be  admitted, 
but  the  witness  will  be  confined  to  such  facts  as  are 
within  his  personal  knowledge. 

86  Q.     Will  a  witness  be  permitted  to  testify  as  to 
matters  of  opinion? 

A.  Only  as  to  matters  of  common  observation, 
such  as  drunkenness,  manner,  identity  of  person  or 
handwriting,  and  as  to  matters  of  science  or  questions 
involving  a  knowledge  of  a  specialty. 

87  Q.     Will  a  witness  be  permitted  to  use  memoranda 
to  refresh  his  memory? 

A.  Memoranda  are  permitted,  provided  they  were 
made  by  the  witness  at  the  time  of  the  facts  or  actions 
to  which  they  refer. 

88  Q.     To  what  matters  will  the  cross-examination 
usually  be  confined? 

A.  To  matters  brought  out  on  the  direct  exam- 
ination, but  other  questions  may  be  asked  for  the 
purpose  of  testing  the  motives,  bias,  prejudice,  or 
credibility  of  the  witness. 

89  Q.     Are  leading  questions  permitted  on  the  cross- 
examination? 

A.  They  are;  a  much  greater  latitude  being  al- 
lowed in  cross-examining  a  witness. 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.         31 

90  Q.     Is  a  witness  usually  re-examined  after  his 
cross-examination? 

A.  It  is  usual  to  re-examine  him,  in  order  that  he 
may  explain  any  statement  brought  out  by  the  cross- 
examination  which  may  be  at  variance  with  those  of 
the  direct  examination,  or  show  his  motive  in  making 
such  statement.  He  is  also  examined  as  to  any  new 
matter  brought  out  by  the  cross-examination. 

91  Q.     What  is  rebuttal,  and  what  is  its  object? 

A.  It  is  testimony  brought  ctut  of  new  witnesses 
by  the  Judge-Advocate,  to  support  the  character  for 
veracity  of  such  of  his  witnesses  as  have  been  im- 
peached by  the  accused,  or  to  impeach  the  witnesses 
of  the  defense,  or  to  discredit  or  rebut  any  new  mat- 
ter introduced  by  the  accused  and  not  touched  upon 
by  the  prosecution. 

92  Q.     Is  it  permissible  for  the  Court  to  ask  questions 
of  any  of  the  witnesses  at  any  time  during  the  trial? 

A.  It  is.  The  better  rule,  however,  is  for  the 
questions  by  the  Court  to  be  asked  of  the  witness  af- 
ter his  re-direct  examination.  These  questions  should 
be  confined  to  clearing  up  doubtful  or  obscure  points, 
or  to  reconcile  discrepancies  in  the  testimony. 

IMPEACHMENT  OF  WITNESSES. 

93  Q.     In  what  three  ways  may  the  credibility  of  a 
witness  be  attacked? 


32         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  (1)  By  disproving  his  testimony.  (2)  By  evi- 
dence impeaching  his  general  reputation  for  truth  and 
veracity^  (3)  By  proof  of  statements  made  out  of 
Court,  contmdictory  to  his  testimony. 

94  Q.     In  the  last  case,  what  rule  must  be  followed? 
A.     The  witness  must  be  asked  if  at  a  specified 

time  and  place,  and  to  a  person  named,  he  did  not 
make  a  statement  contradictory  to  his  testimony, 
giving  the  words  of  such  statement. 

95  Q.     Will  a  party  be  permitted  to  discredit  his  own 
witness? 

A.  Not  unless  he  has  been  imposed  upon,  or  the 
witness  unexpectedly  testifies  adversely. 

96  Q.     Can  the  character  of  the  accused  be  attacked? 
A.     Not  unless  he  himself  puts  it  in  issue. 

97  Q.     Describe  the  two  classes  of  acts  into  which 
offenses,  in  their  relation  to  evidence,  are  divided. 

A.  Those  which  are  in  themselves  unlawful,  in 
which  case  proof  of  the  act  itself  will  suffice;  and 
those  which,  though  ordinarily  lawful,  become  un- 
lawful when  committed  with  a  particular  intent,  in 
which  case  not  only  the  act  itself,  but  the  intent  as 
well,  must  be  fully  proved  before  a  conviction  can 
be  secured. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         33 

RULES  OF  EVIDENCE. 

98  Q.     What  is  the  first  rule  of  eyidence? 

A.  The  evidence  must  correspond  with  the  alle- 
gations and  be  confined  to  the  point  in  issue. 

99  Q..    What  is  the  second  rule? 

A.  It  is  sufficient  if  the  substance  only  of  the 
issue  be  proved.' 

100  Q.    What  is  the  third  rule? 

A.  The  obligation  of  proving  any  fact  lies  upon 
the  party  who  substantially  asserts  the  affirmative  of 
the  issue. 

101  Q.     What  is  the  fourth  rule? 

A.  The  best  evidence  of  which  the  case,  in  its 
nature,  is  susceptible  must  always  be  produced. 

102  Q.  Give  three  of  the  rules  most  likely  to  be  of 
value  to  the  military  lawyer,  regarding  the  introduc- 
tion of  testimony. 

A.  (1)  Evidence  offered  for  a  particular  purpose, 
if  admissible  for  any  purpose,  may  be  admitted  for 
general  purposes.  (2)  A  party  can  not  complain  if 
inadmissible  evidence  be  admitted,  when  no  objection 
is  raised  at  the  time  it  is  offered.  (3)  When  evidence 
is  objected  to  at  the  trial,  the  nature  of  the  objection 
must  be  distinctly  stalted. 

103  Q.  Are  the  proceedings  of  a  Court  of  Inquiry 
admissible? 


34         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  They  are  admissible  in  evidence  in  all  cases 
not  capital,  not  amounting  to  the  dismissal  of  an 
officer,  when  oral  testimony  can  not  be  obtained. 

104  Q.     Are  ex-parte  affidavits  admissible? 
A.     They  are  not. 

105  Q.     What  documentary  evidence  is  admissible? 
A.    -Documents  whose  authenticity  is  first  estab- 
lished by  sworn  testimony,  or  by  the  seal  of  a  Court 
of  record  in  the  United  States,  or  by  the  seals  of  the 
Executive  Departments  of  the  Government. 

106  Q.     What  is  a  confession,  and  when  is  it  admissible 
in  evidence? 

A.  A  confession  is  a  criminating  statement,  freely 
and  willingly  made  without  the  influence  of  hope,  or 
fear,  by  the  accused.  It  is  admissible  only  when  the 
above  circumstances  have  been  clearly  proved. 

FINDING. 

107  Q.     How  will  the  finding  of  the  Court  be  governed? 
A.     By  the  evidence,  considered  in  the  light  of 

the  plea. 

108  Q.     Should  the  findings  on  the  specifications  agree 
with  those  on  the  charge? 

A.  They  should  not  be  inconsistent  with  each 
other.  The  accused  may  be  found  guilty  of  parts  of 
the  specifications,  not  guilty  of  the  remainder,  and 


A    CATECHISM  OF  COURT-MARTIAL  DUTY.         35 

then  guilty  of  the  charge  or  not,  as  the  case  may  be. 

109  Q.  When  the  evidence  proves  the  commission  of 
an  offense  less  in  degree  than  the  offense  charged,  but 
of  a  kindred  nature,  what  is  the  course  to  pursue? 

A.  The  Court  excepts  certain  words  in  the  speci- 
fication, substitutes  others,  finds  the  guilt  and  inno- 
cence of  the  substituted  words,  respectively,  and  then 
finds  the  accused  not  guilty  of  the  charge,  but  guilty 
of  the  lesser  offense. 

110  Q.  When  the  specifications  are  proved,  but  do  not 
in  themselves  constitute  an  offense,  what  language 
should  be  used  in  the  finding? 

A.  "The  Court  finds  the  facts  as  charged,  but 
attaches  no  criminality  thereto/' 

111  Q.  In  cases  where  evidence  of  previous  convic- 
tions is  admissible  and  the  accused  is  found  guilty, 
what  will  the  Court  do  after  the  finding? 

A.  It  will  re-open  the  public  session  for  the  pur- 
pose of  hearing  such  evidence,  if  there  be  any. 

112  Q.     How  are  previous  convictions  proved? 

A.  Those  by  Courts-Martial,  by  the  records  of 
the  trials,  and  the  duly  authenticated  orders  promul- 
gating them;  those  by  Summary  Courts,  by  the  copy 
of  the  Summary  Court  record  furnished  company  or 
other  commanders,  or  one  furnished  for  the  purpose 
and  certified  to  be  a  true  copy  by  the  post  commander 
or  adjutant. 


36         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

PUNISHMENTS. 

113  Q.     What  are  the  legal  punishments  for  officers 
for  military  offenses? 

A.  Death,  dismissal,  suspension  from  rank,  com- 
mand, or  duty,  or  either  or  any  two  or  all  of  them, 
with  or  without  the  loss  of  pay  or  a  part  of  pay,  loss 
of  relative  rank  or  files,  imprisonment,  fine  or  forfeiture 
of  pay,  or  reprimand. 

114  Q.     What  are  the  legal  punishments  for  soldiers? 
A.     Death,   confinement,   confinement  on  bread- 

and-water  diet,  solitary  confinement,  hard  labor,  for- 
feiture of  pay  and  allowances,  dishonorable  discharge 
from  the  service,  and  reprimand. 

115  Q.     What  is  the  additional  punishment  for  non- 
commissioned officers? 

A.     Reduction  to  the  ranks. 

116  Q.     Those  for  a  candidate  for  promotion? 

A.  The  forfeiture  of  all  the  rights  and  privileges 
conferred  by  the  certificate  of  eligibility. 

117  Q.     What  punishments  are  prohibited? 

A.  Flogging,  branding,  tattooing,  carrying  heavy 
logs,  and  extra  guard  duty. 

118  Q.     What  restrictions  are  placed  on  sohtary  con- 
finement?    On  bread-and-water  diet? 

A.     Neither  punishment  should  exceed  fourteen 


A   CATECHISM  OF  COURT-MARTIAL  DUTY,         37 

days  at  any  one  time,  and  the  punishment  should  not 
be  repeated  before  fourteen  days  have  elapsed.  Such 
confinement  shall  not  exceed  eighty-four  days  in  any 
one  year. 

SENTENCES. 

119  Q.     When  the  punishment  is  one  left  to  the   dis- 
cretion of  the  Court,  what  should  be  done? 

A.  The  Court  will  ascertain  if  the  case  under  con- 
sideration be  one  for  which  the  limit  of  punishment 
has  been  fixed  by  the  President. 

120  Q.     How  is  the   character   and   severity   of   the 
sentence  determined? 

A.  The  members  who  desire  to  propose  a  sen- 
tence write  it  on  a  slip  of  paper  and  hand  it  to  the 
president,  who  reads  the  proposed  sentences  to  the 
Court,  and  the  members  vote  upon  them  in  order, 
beginning  with  the  lightest,  until  a  majority  agree 
upon  a  sentence. 

121  Q.     In  a  case  where  the  punishment  is  fixed,  what 
is  the  course  to  pursue? 

A.  The  members  vote  upon  a  sentence  awarding 
the  punishment. 

122  Q.     By  what  authority  must  a  death  sentence  be 
passed? 

A.  By  a  two-thirds  majority,  and  the  record  must 
so  state. 


38         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

123  Q.     When  an  officer  is  dismissed  the  service  for 
cowardice  or  fraud,  what  must  the  sentence  direct? 

A.  That  the  crime,  punishment,  name,  and  resi- 
dence of  the  dehnquent  shall  be  published  in  the  news- 
papers in  and  about  the  camp,  and  in  the  State  from 
which  the  offender  came  or  where  he  usually  resides, 
and  after  such  publication,  it  shall  be  scandalous  for 
an  officer  to  associate  ^\dth  him. 

124  Q.     Can  the  decision  and  sentence  of  a  Court- 
Martial  be  re\dewed  by  any  civil  Court? 

A.  It  can  not;  Courts-Martial  being  Courts  of 
special  jurisdiction,  which  cease  to  exist  as  soon  as 
their  object  has  been  accomplished. 

RECORD. 

125  Q.     What  are  the  essentials  of  a  Court-Martial 
record? 

A.  It  must  show  the  order  convening  the  Court, 
the  date  of  assembling,  any  other  orders  modifying 
the  detail;  that  the  Court  was  organized  according  to 
law;  that  the  prisoner  was  asked  if  he  wished  to  ob- 
ject to  any  member,  and  his  answer  thereto,  the  mem- 
bers present,  the  hour  of  assembling;  that  the  members 
and  the  Judge-Advocate  were  duly  sworn;  that  a  new 
member  took  his  seat,  if  any  did;  any  change  in  the 
Judge-Advocate;    that  the  new  Judge-Advocate  was 


A   CATECHISM  OF  COURT-MARTIAL  DUTY,         39 

duly  sworn;  it  must  contain  the  entire  proceedings 
of  each  day's  session,  including  all  orders,  motions, 
propositions,  objections,  rulings,  and  arguments,  state- 
ments, etc.,  of  either  party;  the  testimony  of  the 
witnesses;  and  that  when  the  Court  sat  in  closed 
session,  the  Judge-Advocate  was  not  present. 

126  Q.     Is  the  record  ever  returned  to  the  Court  by  the 
.    reviewing  authority? 

A.  Whenever  there  appears  to  have  been  care- 
lessness in  its  preparation,  or  when  it  shows  erroneous 
conclusions.  In  such  cases,  the  Court  may  either  in- 
sist upon,  modify,  or  completely  change  the  findings. 

127  Q.  What  would  be  the  effect  upon  the  conviction 
and  sentence  of  a  Court-Martial  should  the  record 
fail  to  show  that  the  Court  or  the  Judge-Advocate 
were  sworn? 

A.     They  would  be  invalid. 

128  Q.  Can  the  sentence  of  a  Court-Martial  be  carried 
into  effect  at  once? 

A.  It  can  be  cartied  into  effect  as  soon  as  it  shall 
have  been  approved  by  the  officer  who  ordered  the 
Court,  or  the  commanding  officer  for  the  time  being; 
not  before. 

129  Q.  What  is  the  effect  of  a  formal  disapproval,  by 
the  convening  authority,  of  the  sentence  of  a  Court- 
Martial? 


40         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.     It  operates  as  an  acquittal. 

130  Q.  What  sentences  require  confirmation  by  the 
President? 

A.  In  time  of  peace,  sentences  inflicting  the  death 
penalty,  or  directing  the  dismissal  of  an  oflBcer. 

131  Q.  What  beneficent  power  is  possessed  by  the 
reviewing  authority? 

A.  The  power  to  pardon,  and  to  mitigate  any 
punishment  except  death,  or  the  dismissal  of  an  officer. 

132  Q.  Is  the  officer  authorized  to  carry  into  effect  a 
sentence  of  death,  or  of  dismissal  of  an  officer,  author" 
ized  to  suspend  the  same? 

A.  He  may  suspend  the  execution  of  the  sentence 
until  the  pleasure  of  the  President  be  known. 

133  Q.  How  will  the  proceedings  of  General  Courts- 
Martial  be  published? 

A.  In  the  cases  of  officers,  and  important  cases 
of  enfisted  men,  in  general  orders.  Unimportant  cases 
are  pubhshed  in  General  Court-Martial  order,  issued 
by  Department  headquarters. 

134  Q.  When  only  is  the  employment  of  a  steno- 
graphic reporter  authorized? 

A.  In  General  Courts-Martial  and  when  the  con- 
vening authority  considers  it  necessary.  An  enlisted 
man,  however,  usually  acts  as  clerk  to  a  Court-Martial. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.  41 

•      .  PRISONERS. 

135  Q.     Into  what  two  classes  are  prisoners  divided? 
A.     Into  garrison  and  general  prisoners;    the  for- 
mer serving  sentences  of  confinement,  and  the  latter 
having  been  sentenced  to  dishonorable  discharge. 

136  Q.     Are  all  classes  of  prisoners  kept  together? 

A.  Garrison  prisoners  will,  as  far  as  possible,  be 
kept  apart  from  general  prisoners,  and  those  sentenced 
for  serious  offenses  will  be  kept  apart  from  those  sen- 
tenced by  inferior  Courts,  or  for  minor  offenses. 

137  Q.  What  papers  will  be  forwarded  to  the  com- 
manding officer  of  a  post  to  which  a  prisoner  is  trans- 
ferred for  the  execution  of  a  sentence  of  confinement? 

A.  Discharge  papers,  if  the  prisoner  is  to  be  dis- 
charged, descriptive  list,  orders  promulgating  or  mod- 
ifying sentence,  statement  of  conduct,  while  under 
sentence,  to  date  of  transfer,  and  a  list  of  all  clothing 
in  possession  of  prisoner,  when  forwarded. 


■42         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 


PART  THIRD 


INFERIOR  COURTS-MARTIAL. 

138  Q.     What  are  Inferior  Courts-Martial? 

A.     They  are  Courts  of  limited  jurisdiction,  com- 
posed of  a  less  number  of  officers  than  General  Courts. 

SUMMARY  COURTS. 

139  Q.     How   many   officers   compose   the   Summary 
Court? 

A.     One. 

140  Q.     What  officer  is  ex-officio  the  Summary  Court? 
A.     The  line  officer  second  in  rank  at  the  post,  or 

station,  or  of  the  command  of  the  accused.  When 
only  staff  officers  are  present,  the  second  in  rank  will 
act;  and  when  only  one  officer  is  present,  he  will  act  i*n 
all  cases  except  those  in  which  he  may  be  the  accuser. 

141  Q.     When  the  officer  second  in  rank  is  the  accuser, 
who  tries  the  case? 

A.     The  post  commander. 

142  Q.     When  the  post  commander  is  the  accuser,  who 
tries  the  case? 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.         43 

A.  It  is  referred  to  the  Department  Commander 
for  the  necessary  action. 

143  Q.     Why? 

A.  Because  the  post  commander  is  the  reviewing 
authority  of  the  Summary  Court  and  is  disquaUfied 
from  acting  as  accuser  and  reviewing  judge  at  the 
same  time. 

144  Q.     How  is  a  Summary  Court  constituted? 

A.  No  action  is  necessary;  the  law  provides  who 
shall,  by  virtue  of  his  rank,  be  the  Summary  Court. 

145  Q.  What  is  the  jurisdiction  of  the  Summary 
Court? 

A.  It  has  jurisdiction  of  all  enlisted  men  other 
than  candidates  for  promotion,  and  over  all  offenses 
the  punishment  for  which  does  not  exceed  confine- 
ment and  forfeiture  of  pay  for  one  month. 

146  Q.  Should  the  commancUng  officer,  through  mis- 
take, refer  a  case  beyond  the  power  of  a  Summary 
Court  to  try,  to  such  Court,  what  must  be  done? 

A.  The  case  mu^t  be  referred  back,  with  a  respect- 
ful reply  stating  the  reasons  for  such  return. 

147  Q.  Has  any  soldier  the  right  to  object  to  trial  by 
Summary  Court? 

A.  He  has;  and  in  case  of  objection,  his  case  must 
be  referred  to  a  Special  Court-Martial . 

148  Q.     What  are  the  powers  of  a  Summary  Court? 


44         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  The  power  to  administer  oaths,  to  hear  and 
determine  cases,  and  to  adjudge  the  punishment  to  be 
inflicted. 

149  Q.     Is  there  any  clerk  to  the  Summary  Court? 
A.     No;  one  of  the  clerks  in  the  adjutant's  office 

usually  acts  as  such. 

150  Q.     What  rules  of  procedure  obtain  in  Summary 
Courts? 

A.  With  such  modifications  as  the  difference  of 
personnel  requires,  they  are  the  same  as  in  General 
Courts-Martial.  The  proceedings  are  not  recorded, 
but  the  sentence  and  finding  are  recorded  in  the  Sum- 
mary Court  Book  and  are  submitted  to  the  post  com- 
mander for  his  approval. 

151  Q.     Is  a  record  of  previous  convictions  submitted 
to  the  Summary  Court? 

A.  It  Is  in  all  cases  where  it  is  admissible  in 
evidence. 

152  Q.     What  is  done  with  the  evidence  of  previous 
convictions? 

A.     It  is  noted  on  the  Summary  Court  Record. 

153  Q.     How  is  the  Summary  Court  Record  kept? 

A.     In  a  book  or  docket  kept  at  each  military  post, 

•    and  at  the  headquarters  of  a  command  in  the  field,  in 

which  shall  be  entered  the  number  of  the  case;  the 

name,  rank,  company,  and  regiment  of^the^accused; 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         45 

the  Article  of  War  violated;  a  synopsis  of  the  specifi- 
cations; the  finding;  the  number  of  previous  convic- 
tions, if  any;  the  sentence;  the  signature  of  the  trial 
officer;  the  action  of  the  commanding  officer,  the  date 
of  same,  and  his  signature. 

154  Q.     Before  whom  are  charges  cognizable  by  a  Sum- 
mary Court  laid? 

A.  They  are  laid  before  the  post  commander, 
who  will  use  good  judgment  and  sound  discretion  in 
bringing  offenders  before  the  Court,  especially  in  the 
case  of  trifling  delinquencies. 

155  Q.     Upon  what  days  will  Summary  Courts  be  in 
session? 

A.  Summary  Courts  will  be  opened  at  a  fixed 
hour  every  day  except  Sunday. 

156  Q.     To  whom  are  the  records  of  convictions  before 
Summary  Courts  furnished? 

A.  The  records,  certified  to  by  the  post  com- 
mander or  adjutant,  are  furnished  the  company  or 
other  commanders  of  the  men. 

SPECIAL  COURTS-MARTIAL. 

157  Q.     How  many  officers  compose  a  Special  Court- 
Martial? 

A.     Any  number  from  three  to  five. 

158  Q.     Who  may  appoint  a  Special  Court-Martial? 


46         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  The  commanding  officer  of  (a)  a  district,  (6) 
a  garrison,  (c)  a  fort,  {d)  a  camp,  (g)  any  place  other 
than  (a),  (6),  (c),  and  (d)  where  troops  are  on  duty, 
(/")  a  brigade,  {g)  a  regiment,  (/i)  a  detached  battalion, 
(^■)  any  other  detached  command. 

159  Q.     What  is  the  jurisdiction  of  this  Court? 

A.     Special   Courts-Martial   have  power  to   try: 

(1)  Any  person  subject  to  military  law,  except  an 
officer  or  any  person  subject  to  military  law  belonging 
to  a  class  or  classes  excepted  by  the  President,  for 

(2)  any  crime  or  offense  (not  capital)  made  punishable 
by  the  Articles  of  War. 

160  Q.  What  rules  of  procedure  obtain  in  this  Court? 
A.  Except  in  the  cases  where  General  Courts- 
Martial  are  specially  mentioned,  the  rules  of  proced- 
ure in  this  Court  are  the  same  as  those  in  General 
Courts,  with  such  modifications  as  the  difference  of 
personnel  will  readily  suggest. 

COURTS  OF  INQUIRY. 

161  Q.     What  is  a  Court  of  Inquiry? 

A.  A  military  body,  composed  of  three  or  more 
officers  and  a  Recorder,  convened  by  proper  author- 
ity to  investigate  the  transactions  of,  or  accusations 
or  imputations  against,  officers  or  soldiers. 

162  Q.     By  whom  may  such  a  Court  be  ordered? 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         47 

A.  By  the  President,  or  by  any  commanding  of- 
ficer, upon  a  demand  by  the  officer  or  soldier  whose 
conduct  is  to  be  inquired  of. 

163  Q.     Why  cannot  such  a  Court  be  ordered  without 
such  a  demand? 

A.  Because  it  might  be  perverted  to  dishonorable 
purposes,  and  might  be  employed,  in  the  hands  of 
weak  and  envious  commandants,  as  engines  for  the 
destruction  of  mihtary  merit. 

164  Q.     Are  the  members  of  this  Court  sworn? 

A.  They  are;  the  Court  first  swearing  the  Record- 
er, who  in  turn  swears  the  Court. 

165  Q.     What  powers  do  Courts  of  Inquiry  possess? 
A.     Power  to  summon  and  examine  witnesses  and 

to  do  all  things  in  relation  to  witnesses  and  their  evi- 
dence which  it  is  lawful  for  a  Court-Martial  to  do. 

166  Q.     Has  a  Court  of  Inquiry  the  power  to  punish  as 
for  contempt? 

A.  It  has  not,  not  being,  in  a  proper  sense,  a 
Court. 

167  Q.     Does  the  Recorder  possess  power  to  administer 
oaths? 

A.     He  does. 

168  Q.     What  method  of  procedure  will  prevail? 
A.     The  same  as  in  Courts-Martial. 


48         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

169  Q.  Do  Courts  of  Inquiry  render  opinions  as  to 
the  merits  of  cases  submitted  to  them? . 

A.  Not  unless  specially  ordered  by  the  conven- 
ing authority.  The  usual  course  is  to  find  the  facts 
and  leave  the  constituting  authority  to  draw  his  con- 
clusions therefrom. 

170  Q.     What  becomes  of  the  record  of  this  Court? 
A.     It  is  authenticated  by  the  signatures  of  the 

president   and  Recorder  and  forwarded  to  the  re- 
viewing authority. 

171  Q.  When  a  Court  of  Inquiry  has  been  ordered  to 
render  an  opinion  upon  the  subject  of  inquiry,  is  it 
necessary  that  the  opinion  be  concurred  in  by  all  of 
its  members? 

A.     No.     There  may  be  a  majority  report  and  one 
,    or  more  minority  reports. 

MISCELLANEOUS. 

172  Q.  Which  of  the  Articles  of  War  are  called  the 
''General  Articles ''? 

A.  The  95th,  which  applies  to  conduct  unbecom- 
ing an  officer  and  a  gentleman;  and  the  96th,  which 
applies  to  conduct  to  the  prejudice  of  good  order  and 
military  discipline. 

173  Q.  Are  erasures  and  interlineations  permitted  in 
the  record  of  a  Court-Martial? 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.         49 

A.  They  will  be  avoided,  as  far  as  possible;  but, 
if  unavoidable,  must  be  authenticated  by  the  signature 
of  the  Judge-Advocate. 

174  Q.  What  must  be  the  condition  of  each  page  of 
the  record? 

A.  It  must  be  numbered  in  its  order,  and  must 
have  a  blank  margin  of  one  inch  on  the  left  side,  the 
top  and  bottom. 

175  Q.  What  are  the  usual  hours  for  the  sessions  of 
Courts-Martial? 

A.  From  nine  o'clock  in  the  morning  to  three 
o'clock  in  the  afternoon,  unless  otherwise  ordered. 

176  Q.  How  will  the  Judge- Advocate  note  the  pres- 
ence or  absence  of  any  member  of  the  Court? 

A.     By  name. 

177  Q.  When  several  cases  are  to  be  tried,  will  the 
reporter  be  sworn  for  the  whole  term,  or  before  each 
case? 

A.     Before  each  case. 

178  Q.  What  is  the  Judge-Advocate's  duty  with  re- 
gard to  absent  officers? 

A.  He  must  ascertain  the  cause  of  such  absence. 
If  caused  by  an  order,  he  will  note  the  order;  if  by  ill- 
ness, he  will  append  the  surgeon's  certificate  to  the 
record. 

179  Q.     What  rule  must  be  strictly  observed  by  the 


50         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

Count  in  the  discussion  of  all  general  and  special 
issues? 

A  During  the  discussion,  the  Court  must  sit  be- 
hind closed  doors,  and  the  Judge-Advocate  and  all 
other  persons  must  retire.     Tha  record  must  so  state. 

180  Q.     How  will  the  voting  be  conducted? 

A.  The  voting  is  begun  by  the  junior  officer  and 
is  continued  until  all  have  voted,  the  president  voting 
last. 

181  Q.  When  a  question  is  asked  by  a  member  and 
objection  is  made  thereto,  what  is  the  proper  manner 
of  recording  the  question  when  the  objection  is  sus- 
tained, and  when  it  is  overruled? 

A.  When  the  objection  is  sustained,  the  question 
is  recorded  as  by  a  member,  and  not  answered;  but 
when  the  objection  is  overruled,  the  question  is  re- 
corded as  by  the  Court,  repeated  by  the  Judge- 
Advocate,  and  must  be  answered. 

182  Q.  What  is  done  with  documentary  evidence, 
written  pleas,  objections,  and,  in  general,  papers  form- 

,       ing  a  part  of  the  proceeding? 

A.  They  are  appended  to  the  record  after  the 
blank  pages  left  for  the  reviewing  authority,  in  the 
nature  of  exhibits,  and  are  lettered  in  their  order. 

183  Q.  How  many  blank  pages  will  be  left  for  the 
remarks  of  the  reviewing  authority? 

A.    Two. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         51 

184  Q.  Should  an  officer  charged  with  a  warrant  of 
attachment,  having  executed  his  warrant,  be  served 
with  a  writ  of  habeas  corpus,  what  course  will  he 
pursue? 

A.     If  from  a  Federal  Court,  it  should  be  prompt- 
ly obeyed;   but  a  firm  though  respectful  refusal  will 
be  returned  to  the  writ  of  any  State  Court,  citing 
Ableman  vs.  Booth,  21  Howard  506,  and  Tarble's  Case, 
^  13  Wallace  397. 

185  Q.  Can  a  Court-Martial  relieve  or  excuse  a 
member? 

A.  Not  without  proper  orders  from  the  convening 
authority. 

186  Q.  Is  the  dismissal  of  an  officer  by  Executive 
order  the  same  as  a  dismissal  by  a  Court-Martial? 

A.  They  differ  in  the  sole  particular  that  the  first 
carries  no  stigma  and  does  not  disqualify  for  reap- 
pointment to  office. 

187  Q.  Does  a  suspension  from  rank  affect  the  right 
of  an  officer  to  his  office? 

A.  It  does  not.  He  retains  it  the  same  as  before, 
and  draws  the  pay  of  the  same.  He,  of  course,  loses 
the  chance  for  promotion  during  his  suspension,  but 
his  position,  as  regards  others  of  like  rank,  is  not 
affected  by  his  suspension. 

188  Q.     Can  officers  of  the  Regular  Army  sit  in  Courts- 


52         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

Martial  for  the  trial  of  officers,  or  soldiers  of  the 
Volunteers  or  Militia? 

A.  Officers  of  the  Regular  Army  sitting  on  Courts- 
Martial  can  try  regulars  only;  they  may  not  sit 
in  judgment  on  volunteers  or  militiamen.  Courts- 
Martial  for  the  trial  of  officers  or  soldiers  of  the  Vol- 
unteers or  Militia  may  be  composed  of  Volunteer  and 
Militia  officers,  either  or  both. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         53 


PART  FOURTH 


Historical  Note  to  the  Articles  of  War. — Previous  to 
the  passage  of  the  Mutiny  Act  in  1689,  military  law 
in  time  of  peace  was  unknown  in  England,  but  existed 
only  in  time  of  actual  war,  when  Ordinances  or  Articles 
of  War  were  issued  by  the  Crown,  or  under  its  direction 
by  the  commander-in-chief,  for  the  government  of  the 
troops.  This  system  continued  until  long  after  the  pas- 
sage of  annual  Mutiny  Acts  was  begun,  ceasing  to  exist 
when  superseded  by  statute  in  1803.  The  Ordinances 
or  Articles  of  War  issued  by  Charles  I.  in  1672  form  the 
basis  for  those  of  1878,  which  were  consolidated  with  the 
Mutiny  Act  in  1879,  and  replaced  by  the  Army  Act  of 
1881,  now  in  fo^ce. 

The. Rules  and  Articles  of  War  of  the  Army  of  the 
United  States  of  America  were  derived  from  the  Eng- 
lish Mutiny  Act  and  Articles  of  War  in  1775,  because 
the  Continental  Congress,  finding  it  necessary  to  enact 
rules  for  the  government  of  its  troops,  naturally  turned 
to  that  system  with  which  its  members  were  niost  fa- 
miliar, the  same  being  the  English  Articles,  those  under 


54         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

which  the  Colonial  troops  had  come  in  1754.  So,  in 
June,  1775,  the  Congress  promulgated  the  Sixty-nine  Ar- 
ticles of  War  for  the  government  of  the  Continental 
troops.  Additional  Articles  were  made  the  next  Novem- 
ber, but  were  all  repealed  in  September,  1776,  and  new 
Articles,  one  hundred  and  two  in  number,  were  adopted. 
These  remained  in  force,  with  occasional  modifications, 
until  1806,  being  formally  recognized  in  1789  by  the 
First  Congress  of  the  United  States.  In  1806  they  were 
re-arranged  and  promulgated,  and  revised  and  re-arranged 
by  act  of  Congress  approved  August  29,  1916.  (30  Stat. 
650-670.) 

THE  ARTICLES  OF  WAR. 

189  Q.  Can  the  selling  or  losing  of  sheets,  pillows, 
pillow-cases,  mattress  covers,  shelter  tents,  barrack 
bag,  great-coat  strap,  tin  cup,  spoon,  knife,  fork,  meat- 
ration  can,  or  cartridges  be  punished  under  the  84th 
Article? 

A.  No.  The  charge  should  be  laid  under  the 
84th,  94th,  or  96th  Articles,  as  the  case  may  be  and 
the  circumstances  may  require. 

190  Q.     Explain  the  effect  of  the  62d  Article. 

A.  A  hostile  arraignment  of  the  President,  Vice- 
President,  the  Congress,  or  the  Governor  or  Legislat- 
ure of  a  State,  or  the  deliberate  use  of  denunciatory  or 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         55 

contumelious  words  against  the  same,  whether  spoken 
in  public,  or  published,  or  conveyed  in  a  communica- 
tion designed  to  be  made  public,  constitute  a  violation 
of  the  Article.  A  sober,  temperate  adverse  criticism 
of  the  acts  of  such  officers  in  a  manner  clearly  not 
meant  to  be  disrespectful,  or  to  excite  animosity 
against  them,  is  not  a  violation. 

191  Q.  What  is  necessary  in  the  specification  to  a 
charge  under  the  63d  Article? 

A.  The  particular  words  or  acts  relied  on  as  con- 
stituting the  offense  must  be  properly  set  forth. 

192  Q.  Who  is  the  "  commanding  officer  "  of  the  officer 
or  soldier  in  the  63d  Article? 

A.  The  superior  who  is  authorized  to  require  obe- 
dience to  all  of  his  orders  from  such  officer  or  soldier, 
at  least  for  the  time  being. 

193  Q.  What  must  appear  in  evidence  on  trial  to 
justify  a  conviction  under  the  64th  Article? 

A.  That  the  accused  knew  or  believed  that  the 
person  assaulted  was,  in  fact,  an  officer  of  the  Army 
and  was  his  '^ superior^'  in  rank.  In  this  Article  the 
superior  officer  need  not  be  the  commanding  officer  of 
the  accused. 

194  Q.  When  the  charge  under  the  64th  Article  is 
disobedience,  what  should  be  alleged  and  appear  from 
the  evidence? 


56         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

A.  That  the  order  or  "command'^  was  ''lawful/' 
Under  this  Article  an  officer  or  soldier  is  not  punish- 
able for  disobeying  unlawful  orders. 

195  Q.  What,  alone,  will  justify  a  militiary  inferior 
in  disobeying  an  order  or  command  from  his  superior? 

A.  That  the  order  requires  something  to  be  done 
which  is  palpably  a  breach  of  law  and  a  crime  or  an 
injury  to  a  third  party,  or  is  of  a  serious  character  and, 
if  done,  w^ould  not  be  susceptible  of  being  righted. 

196  Q.     What  is  a  mutiny  under  the  66th  Article? 

A.  An  unlawful  opposing  or  resisting  of  lawful 
military  authority,  with  intent  to  subvert  the  same, 
or  to  nullify  or  neutralize  it  for  the  time. 

197  Q.  Is  a  refusal  of  soldiers,  acting  in  concert,  to 
obey  an  unlawful  order  punishable  under  this  Article? 

A.     It  is  not. 

198  Q.  Can  punishment  of  any  character  be  infficted 
under  the  90th  Article? 

A.  It  can  not;  this  Article  providing  merely  for 
the  taking  of  certain  measures  of  restraint,  by  com- 
manding officers. 

199  Q.  When  an  officer  or  soldier  has  been  absent 
without  leave  under  the  61st  Article,  and,  returning 
to  his  station,  is  placed  upon  and  allowed  to  perform 
full  duty,  what  effect  ^vill  this  have  upon  the  result 
of  a  trial  under  said  Article? 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         57 

A.  The  placing  on  duty  operates  as  a  waiver  of 
the  charge  of  absence  without  leave,  and  may  be 
pleaded  as  a  good  defense  upon  the  trial. 

200  Q.  Is  an  officer,  reporting  in  person  drunk,  upon 
his  arrival  at  a  post,  to  the  commanding  officer  to 
whom  he  had  been  ordered  to  report,  chargeable  under 
the  85th  Article? 

A.     He  is;  such  report  being  a  duty. 

201  Q.  What  kind  or  grade  of  drunkenness  is  meant 
by  this  Article? 

A.  Such  a  degree  of  intoxication,  whether  by  the 
use  of  spiritous  liquor,  opium,  or  other  intoxicating 
drug,  as  will  be  sufficient  to  materially  impair  the 
full  and  free  use  of  the  officer^s  mental  or  physical 
faculties. 

202  Q.  On  a  charge  of  giving  intelligence  to  the  enemy 
under  the  81st  Article,  what  must  be  proved  before  a 
conviction  can  be  had? 

A.  That  the  intelligence  actually  reached  the 
enemy. 

203  Q.  What  rule  of  procedure  must  be  followed 
under  Articles  89  and  105? 

A.  The  citizen  aggrieved  tenders  a  ''complaint'^ 
under  oath,  charging  the  injury  against  a  particular 
soldier  or  soldiers,  describing  by  name  (if  known),  regi- 
ment, etc.,  and  accompanied  by  evidence  of  the  injury, 


58         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

and  of  the  instrumentality  of  the  person  or  persons 
accused.  If  such  evidence  be  satisfactory,  the  com- 
manding officer  has  the  damage  assessed  by  a  board, 
and  makes  orders  for  such  stoppage  of  pay  as  will  be 
sufficient  for  the  reparation  enjoined  by  the  Article. 
The  commander  must  have  a  proper  case  presented  to 
him;  he  can  not  act  of  his  own  motion. 

204  Q.     Is  the  jurisdiction  to  try  crimes,  authorized  by 
the  92d  and  93d  Articles,  exclusive  in  Courts-Martial? 

A.  It  is  concurrent  merely  with  the  jurisdiction 
of  the  civil  tribunals.  See  Coleman  vs.  Tennessee, 
7  Otto  513;  People  vs.  Gardiner,  6  Parker  143;  Digest 
Opinions  Judge- Advocate  General,  49,  par.  2. 

205  Q.     What  may  the  74th  Article  be  taken  to  be? 
A.     A  formal  recognition  of  the  general  principle 

of  the  subordination  of  the  military  to  the  civil  power, 
and  its  main  purpose  evidently  is  to  facilitate,  in  cases 
of  offenders  against  the  local  civil  statutes  who  happen 
to  be  connected  with  the  Army,  the  execution  of  those 
statutes  where,  as  citizens,  such  persons  remain  legal- 
ly amenable  to  arrest  and  trial  thereunder.  A  party 
should  be  surrendered  though  the  offense  be  one  of 
which  a  Military  Court  has  jurisdiction,  unless  the 
military  jurisdiction  has  already  attached;  in  which 
case  he  may  or  may  not  be  surrendered,  in  the  dis- 
cretion of  the  commanding  officer. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         59 

206  Q.  On  a  charge  of  embezzlement  under  the  94th 
Article,  what  would  be  a  good  defense? 

A.  That  the  funds  alleged  to  have  been  embez- 
zled were,  without  fault  of  the  accused,  lost  in  trans- 
portation, or  fraudulently  or  feloniously  abstracted. 

207  Q.  Define  the  character  of  conduct  necessary  to 
a  conviction  under  the  95th  Article. 

A.  The  conduct  should  be  such  as  is  at  once 
disgraceful  or  disreputable  aAd  manifestly  unbefitting 
both  an  officer  of  the  Army  and  a  gentleman. 

208  Q.  What  is  the  objection  to  a  charge  under  the 
96th  Article,  whose  specifications  set  forth  merely  trials 
and  convictions  of  the  accused  for  previous  offenses? 

A.  It  is  an  attempt  to  try  a  man  twice  for  the 
same  offense,  and  does  not  plead  any  military  offense. 

209  Q.  Under  the  70th  Article,  a  copy  of  a  charge  was 
duly  served  upon  an  accused  officer,  only  it  was  after- 
wards ascertained  that  the  charge  contained  a  list  of 
witnesses  which  was  not  appended  to  the  copy.  Was 
this  a  compliance  with  the  Article? 

A.     Yes. 

210  Q.     Can  a  Court-Martial  punish  as  for  contempt? 
A.     Not  to  the  same  extent  as  a  Court  of  law.     It 

is  not  authorized  to  punish  civilian  witnesses  who  re- 
fuse to  testify,  without  disorder. 


60         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 


PART  FIFTH 


FORMS. 
[FORM  1.] 

SUBPCENA  FOR  A*  MILITARY  WITNESS. 

Fort 


,  190—. 

To , 


Sir: 

You  are  hereby  summoned  to  appear  on  the  —  day  of , 

190 — ,  at  —  o'clock  —  m.,  before  a Court-Mar tial,  convened 

at ,  by  Special  Orders  No.  — ,  from ,  as  a  witness  in 

the  case  of  Artificer ,  Co.  — , Infantry. 


Judge-Advocate. 
[FORM  2.] 

SUBPCENA  FOR  A  CIVILIAN  WITNESS. 

The  United  States  ]  Fort , 


vs.  |Subpcena.  ,190 — . 

Artificer .J 

The  President  of  the  United  States,  to ,  Greeting: 

You  are  hereby  summoned  and  required  to  be  and  appear  in 
person  on  the  —  day  of ,  190 — ,  at  —  o'clock  —  m.,  before 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         61 


a Court-Martial  of  the  United  States,  convened  at  ■ 


by  Special  Orders,  No.  — ,  Headquarters ,  dated , 

190 — ,  then  and  there  to  testify  and  give  evidence  as  a  witness  for 

the in  the  above-named  case.*     And  have  you  then  and  there 

this  precept. 

Dated  at ,  this  —  day  of ,  190 — . 


Judge- Advocate  of  the  Court-Martial. 
[form  3.] 

SUBPCENA  DUCES  TECUM  TO  CIVILIAN  WITNESS. 

[The  same  as  Form  2,  down  to  asterisk,  after  which  continue:] 
and  you  are  hereby  required  to  bring  with  you,  to  be  used  in  evi- 
dence in  said  case,  the  following  documents,  to-wit: . 

And  have  you  then  and  there  this  precept. 

Dated  at ,  this  —  day  of ,  190 — . 


[FORM  4.] 


Judge-Advocate  of  the  Court-Martial. 


RETURN  OF  SERVICE. 


(All  Subpoenas  must  bear  this.) 
The  United  States. 
vs. 


-,  190—. 

I  certify  that  I  made  the  service  of  the  within  subpoena  on 

,  the  witness  named  therein,  by  personally  delivering  to 

him  in  person  a  duplicate  of  the  same  at ,  on  the  —  day  of 

,  190-. 


62         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 


,  being  duly  sworn,  on  his  oath  states  tha    the  fore- 
going certificate  is  true. 


Subscribed  and  sworn  to  this  —  day  of  — ,  190 — ,  before  me. 


[FORM  5.] 

WARRANT  OF  ATTACHMENT  FOR  CIVILIAN  WITNESS 

The  United  States 


The  President  of  the  United  States,  to ,  Greeting: 

Whereas, ,  of ,  was  on  the  —  day  of , 

190 — ,  at ,  duly  subpoenaed  to  appear  and  attend  at , , 

on  the  —  day  of ,  190 — ,  at  —  o'clock  m.,  before  a Court- 
Martial  duly  convened  by  Special  Orders,  No.  — ,  dated  Headquar- 
ters   , ,  190 — ,  to  testify  on  the  part  of  the 

in  the  above-entitled  cause;  and  whereas  he  has  failed  to  ap- 
pear and  attend  before  said Court-]\lartial  to  testify  as  by  said 

subpoena  required,  and  whereas  he  is  a  necessary  and  material 

witness  in  behalf  of  the in  the  above-entitled  cause; 

Now,  therefore,  by  virtue  of  the  power  vested  in  me,  the  un- 
dersigned, as  Judge-Advocate  of  said Court-Martial,  by  Sec- 
tion 1202  of  the  Revised  Statutes  of  the  United  States,  you  are 
hereby  commanded  and  empowered  to  apprehend  and  attach  the 

said ,  wherever  he  may  be  found  within  the [State 

or  Territory]  of ,  and  forthwith  bring  him  before  the  said 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         63 

Court-Martial  assembled  at ,  to  testify  as  required 

by  said  subpoena. 


Judge- Advocate  of  said Court-Martial. 

Dated , 

,  190—. 

[FORM  6.] 

INTERROGATORIES  TO  BE  PRONOUNCED  TO  ABSENT 
WITNESS. 

Interrogatories. 
The  United  States  [Name  of  officer  who  is  to  cause 

vs.  To .        depositions  to  be  taken.] 


Interrogatories   and    cross-interrogatories   to   be   propounded 

under  the  25th  Article  or  War  to ,  a  witness  for  the 

in  the  above-entitled  case,  now  pending  and  to  be  tried  before  the 

Court-Martial,    convened  at ,  by  paragraph  , 

Special  Orders,  No.  — ,    Headquarters ,  dated , 

190—. 

1st  interrogatory : ? 

2d  interrogatory: ? 

[And  so  on.] 

1st  cross-interrogatory : ? 

2d  cross-interrogatory : ? 

[And  so  on.] 


Deposition. 
-,  the  witness  above  named,  being  first  duly  sworn, 


64         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

doth  depose  and  say  for  full  answers  to  the  foregoing  interrogatories, 
as  follows : 

To  the  1st  interrogatory: . 

To  the  2d  interrogatory : . 

[And  so  on.] 

(Witness's  signature.) . 


Subscribed  and  sworn  to  before  me  this  —  day  of ,  190 — . 


I, ,  the  officer  designated  to  cause  the  depositions 

of  the  said to  be  t^ken  on  the  foregoing  interrogatories 

and  cross-interrogatories,  do  certify  that  it  was  duly  made  and 
taken  under  oath . 


EXCEPTIONS  TO  THE  SUBSTANCE  OF  THE 
CHARGES. 
[FORM  7.] 

BECAUSE  THE  SPECIFICATION  DESCRIBES  NO 

OFFENSE. 

The  United  States 

vs. 
.  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and  excepts  to  the  sub- 
stance of  the  specification,  charge,  herein,  because  it 

does  not  appear  from  the  face  of  the  same  that  an  offense  against 
the  law  was  committed  by  the  accused,  inasmuch  as  it  charges  that 
[Here  show  in  what  respect  the  specification  is  deficient.] 

.  Accused. 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         65 

[FORM  8.] 

BECAUSE  OF  LIMITATION. 
The  United  States 

vs. 
.  In Court-Martial, ,  190 — . 


Now  comes  the  accused, ,  and  excepts  to  the  sub- 
stance of  the  charges  herein,  because  it  apjibars  from  the  face  of 
the  same  that  a  prosecution  for  the  offense  is  barred  by  lapse  of 
time,  because  it  appears  to  have  been  committed  [Here  show  why 
the  Statute  of  Limitation  appHes.] 

,  Accused. 

[FORM  9.] 

BECAUSE  OF  IMPOSSIBLE  DATE. 
The  United  States 
vs. 

.  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and  excepts  to  the  sub- 
stance herein,  because  it  appears,  from  the  face  of  the  same,  that 
the  offense,  if  committed  at  all,  was  committed  on  an  impossible 

date,  to-wit :  on  the  —  of ,  1 — ,  a  date  subsequent  to  the  date 

for  the  convening  of  this  Court  [or,  a  date  to  which  we  have,  as  yet, 
not  arrived] . 

,  Accused. 

[FORM  10.] 

BECAUSE  OF  LEGAL  DEFENSE  CONTAINED  IN 
SPECIFICATION. 
The  United  States 

vs. 
-.  In Court-Martial, ,  190—. 


Now  comes  the  accused,  — -  ,  and  excepts  to  the  substance 

of  the  charges  herein,  because  they  contain  matter  which  is  a  legal 


66         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

defense  or  bar  to  the  prosecution,  in  that  they  contain  the  following : 
[Here  set  out  the  matter  alleged  and  how  it  constitutes  a  defense.] 

,  Accused. 

[FORM  11.] 

BECAUSE  OF  LACK  OF  JURISDICTION. 
The  United  States 
vs. 

.  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and  excepts  to  the  sub- 
stance of  the  charge  herein,  because  it  shows  upon  its  face  that  this 
Court,  trying  the  case,  has  no  jurisdiction  thereof,  because  [Here 
state  the  reason  for  the  lack  of  jurisdiction.] 

,  Accused. 

EXCEPTIONS  TO  THE  FORM  OF  CHARGES. 
[FORM  12.] 

BECAUSE  OF  MISNOMER. 
The  United  States 
vs. 

-^ .  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and  excepts  to  the  form 

of  the  charges  herein,  because  the  same  do  not  contain  his  name. 

,  Accused. 

[FORM  13.] 

BECAUSE    THE    SPECIFICATION    IS    UNINTELLIGIBLE. 
The  United  States 
vs. 

.  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and  excepts  to  the  form 

of  the  charges  herein,  because  the  offense  attempted  to  be  described 
therein  is  not  set  forth  in  plain,  intelligible  words. 

,  Accused, 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         67 

[FORM  14.] 

FORMER  CONVICTION. 
The  United  States 

vs. 
:  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and,  for  special  plea  in  bar 

herein,  says  that  the  prosecution  ought  not  further  to  prosecute  this 
cause  against  him,  because  he  says  that  heretofore,  to-wit,  on  or 

about  the  —  day  of  — ■. — ,  1 — ,*  in  the •  Court  for County, 

State  of  [or.  Territory  of]  — — ,  there  was  duly  and  legally  presented 

and  filed  a  valid [complaint,  information,  or  indictment,  as  the 

case  may  be]  against  him,  to-wit,  the  following:  [Here  set  out  the 
document  in  its  exact  words,  or  state  the  reason  why  this  cannot 
be  done,  and  set  out  the  document  substantially.]  the  file  number 
of  which,  in  said  Court,  being  No.  — .t     And  that  on,  to-wit,  the  — 

day  of ,  1 — ,  the  said  accusation  against  the  said , 

in  said  cause  No.  ,  was  legally  tried  upon  its  merits  in  said 

Court,  and  the  said wast  duly  and  legally  convicted  of 

said  accusation  by  judgment  of  said  Court,  which  is  as  follows, 
to-wit:  [Here  set  out  the  judgment.]  and  which  judgment  still  re- 
mains in  full  force  and  effect,  and  has  never  been  reversed  or  avoided ; 
and  it  is  the  judgment  of  a  Court  of  competent  jurisdiction.     And 

the  said ,  herein  accused,  says  that  he  and ,  so 

accused  and  convicted  as  last  aforesaid,  is  one  and  the  same  person, 
and  not  other  and  different  persons;  and  that  the  offense  of  which 

the  said was  so  convicted  as  aforesaid  and  the  offense 

charged  against  him,  and  for  which  he  is  now  being  prosecuted, 
herein,  is  one  and  the  same  transaction  and  offense,  and  not  other 
and  different  transactions  and  offenses.  And  this  he  verifies  upon 
his  oath.  Wherefore  he  respectfully  prays  the  judgment  of  this 
Court,  that  he  be  dismissed  hence  without  day. 

,  Accused. 


68         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

,  being  duly  sworn,  on  his  oath  states  that  the  fore- 
going special  plea  is  true 


[FORM  14a.] 

FORMER  CONVICTION  BY  COURT-MARTIAL. 

[Follow  Form  14  as  far  as  the  asterisk,  and  then  proceed  as 

follows:]  in  a Court-Martial  duly  convened  at by 

[General  or  Special]  Orders,  No.  — , ,  there  was  duly 

and  legally  presented  a  valid  charge  against  him,  to-wit,  the  fol- 
lowing: [Here  set  out  the  document  in  its  exact  words,  or  state  some 
good  reason  for  not  doing  so,  and  set  it  out  substantially.]  the  file 
number  of  which,  in  said Court-Martial,  being  No.  — .§  [Con- 
tinue from  dagger  as  in  Form  14.] 

[FORM  15.] 

FORMER  ACQUITTAL. 

The  United  States 
vs. 

.  In Court-Martial, ,  190—. 

Now  comes  the  accused, ,  and,  for  special  plea  in 

bar  herein,  says  that  the  prosecution  ought  not  further  to  prosecute 
this  case  against  him,  because  he  says  that  heretofore,  to-wit,  on 

the  —  day  of ,  1 — ,  [Continue  as  in  Form  14  as  far  as  the  double 

dagger,  and  then  proceed:]  ||by  verdict  and  judgment  therein,  duly 
and  legally  acquitted  of  said  accusation,  which  said  verdict  and 
judgment  of  acquittal  are  as  follows,  to-wit:  [Here  set  out  same  in 
exact  words.]  ^and  which  said  judgment  still  remains  in  full  force 


A  CATECHISM  OF  COURT-MARTIAL  DUTY.    ^     69 

and  effect  and  not  in  the  least  reversed  or  avoided,  and  is  the  judg- 
ment of  a  Court  of  competent  jurisdiction.     And  the  said , 

herein  accused,  in  fact  says  that  he  and  the  said ,  so  ac- 
cused and  acquitted  as  last  aforesaid,  is  one  and  the  same  person, 
and  not  other  and  different  persons,  and  the  offense  of  which  he 
was  acquitted  as  aforesaid  and  the  offense  charged  against  him 
herein,  and  for  which  he  is  now  being  prosecuted,  is  one  and  the 
same  transaction  and  offense,  and  not  other  and  different  transac- 
tions and  offenses.     And  this  he,  the  said ,  verifies  upon 

his  oath.  Wherefore  he  prays  judgment  of  this  Court  that  he  be 
dismissed  hence  without  day. 

. ,  Accused. 

■ — ,  being  duly  sworn,  on  his  oath  sates  that  the  foregoing 


special  plea  is  true. 


hi 


[FORM  15a.] 

FORMER  ACQUITTAL  BY  COURT-MARTIAL. 

[Follow  Form  14  as  far  as  the  asterisk,  then  follow  Form  14a 
as  far  as  §,  then  proceed  as  follows:]     And  that  on,  to-wit,  the  — 

day    f ,  1 — ,  the  said  accusation  against  the  said in 

said  case  No.  — ,  was  legally  tried  upon  its  merits  in  said  Court- 

Martial,  and  the  said was  [Continue  from  ||  in  Form  15 

as  far  as  H,  and  then  insert  the  following:]  which  was  duly  approved 
by  the  convening  authority,  [Then  proceed  as  in  Form  15  from  ^  to 
the  end  of  said  Form .] 

[FORM  16.] 

PLEA  TO  THE  JURISDICTION. 

The  United  States 
vs. 
.  In Court-Martial, ,  190—. 


70         A   CATECHISM  OF  COURT-MARTIAL  DUTY. 

Now  comes  the  accused, ,  and  for  special  plea  in  bar 

herein  says  that  the  Court  here  ought  not  to  take  cognizance  of  the 
offense  (or  person)  in  the  charge  against  the  accused  herein ;  because, 
protesting  that  he  is  not  guilty  of  the  same,  nevertheless  the  said 

says  that  [Here  state  fully  and  accurately  the  matter  of 

fact  relied  on  to  defeat  the  jurisdiction  or  to  show  that  the  Court 

is  without  it.]  and   this  he,  the  said ,  verifies  upon  his 

oath.  Wherefore  he  prays  the  judgment  of  this  Court  that  he  be 
dismissed  hence  without  day . 

,  Accused. 

-■ ,  being  duly  sworn,  states  upon  his  oath  that  the 

foregoing  special  plea  is  true. 


CONTINUANCES. 

[FORM  17.] 

APPLICATION. 

The  United  States 


In Court-Martial, ,  190 — . 


Now  comes [the  accused  or  the  Judge-Advocate,  as 

the  case  may  be],  and  under  oath  states  to  the  Court  that 

is  a  material  witness  in  behalf  of  the  [prosecution  or  defense,  as  the 
case  may  be]  in  the  above-entitled  and  numbered  case,  and  is  absent 

from  this  Court;  that  the  said  — resides  in  ,  

County,  ;  that  due  and  sufficient  diligence  has  been  used  to 

procure  the  attendance  of  the  said as  a  witness  in  behalf 

of  the herein,  to-wit,  by  causing  a  lawful  subpoena  to  issue  from 

this  Court  summoning  the  said to  appear  before  the  same 

on  the  —  day  of ,  190 — ,  therein  to  testify  in  behalf  of  the , 


A   CATECHISM  OF  COURT-MARTIAL  DUTY.         71 

which  said  subpoena  was  placed  in  the  hands  of and  was 

by  him  duly  served  according  to  law  on  the  —  day  of ,  190 — , 

as  appears  from  the  return  of  the  said ,  duly  certified  aud 

sworn  to  [or,  set  out  facts  which  excuse  the  use  of  the  diligence  re- 
quired by  law];  and  the  testimony  of  said  witness  is  believed  by 

the  applicant  to  be  material  for  the .     And  the  facts  which  the 

applicant  expects  to  establish  by  the  said  witness, ,  are 

as  follows,  to-wit:  [Here  set  out  the  facts  expected  to  be  proved 
and  such  other  matters  as  will  show  their  materiality.]  Said  witness 
is  not  absent  from  this  Court  by  the  procurement  or  consent  of  this 
applicant,  and  this  application  is  not  made  merely  for  delay,  but 
this  applicant  has  reason  to  believe  and  does  believe  that  the  at- 
tendance of  the  said  witness, ,  can  be  procured  within 

days.     Wherefore  the  [prosecution  or  defense]   moves  this 

Court  to  continue  this  case  until  the  expiration  of  the  reasonable 
time  herein  stated. 

,  Accused  [or  Judge- Advocate]. 

,  being  duly  sworn,  on  his  oath  says  that  the  fore- 
going application  is  true. 


[FORM  18.] 

APPLICATION  ON  THE  GROUND  OF  SURPRISE. 

The  United  States 

Vs. 
.  In Court-Martial, ,  190—. 


Now  comes  the  accused, ,  and  states  under  oath, 

that  by  an  unexpected  occurrence  since  his  trial  commenced ,  which 
no  reasonable  diligence  could  have  anticipated,  he  is  so  taken  by 
surprise  that  a  fair  trial  of  this  cause  cannot  be  had,  to-wit,  that 


72         A  CATECHISM  OF  COURT-MARTIAL  DUTY. 

[witness  died,  or,  unexpected  evidence  introduced,  or,  other  facts 
which  constitute  the  surprise].     Wherefore  he  moves  this  Court  to 

continue  this  case  until  the  —  day  of ,  190 — . 

,  Accused. 

,  being  duly  sworn,  on  his  oath  states  that  the  above 

and  foregoing  is  true. 


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